18.1In Part 4 we ask how the law should facilitate decision making about burial and cremation, and the resolution of fundamental disputes where these arise. In this chapter we conclude our review with a discussion of what we describe as “secondary decision making” that families can face after the burial or cremation has taken place. Here we assess the adequacy of the legal tools and mechanisms available to resolve disputes that may arise in these different contexts.
18.2The matters over which the bereaved may have to make decisions in the aftermath of a death are quite varied, and the sources of disagreement equally so. For example, decisions may need to be made about what to do with the ashes of the deceased, or what should be included on any memorial inscription. At a later stage – sometimes generations later – questions may arise about whether additional interments (bodies or ashes) can be made in an existing family grave. Occasionally someone will seek permission to disinter a body from a grave for burial in another place.
18.3Most often these decisions will be made amicably and after appropriate consultation. However, from time to time, the decision making process will not be straightforward, either because a family member has a strong objection to what is proposed, or because there is no clarity about who actually has the legal authority to make the decision in the first place. As with disagreements over burial, many different factors can contribute to disputes over these secondary decisions, including conflicting values and beliefs and the breakdown of marriages and family relationships.
18.4The Burial and Cremation Act 1964 (the Act) does not address these questions and there has been very little case law on these points. Although the Supreme Court decision in Takamore v Clarke has confirmed the lead role of the executor in determining the burial location, the extent to which the executor can or should be involved in any secondary decision making after burial or cremation have taken place remains unclear.
18.5The small number of cases means there is limited jurisprudence and case authority to guide future courts faced with these issues. The basis on which the parties may bring such disputes before the courts is also unclear. Overseas precedents may provide some assistance, but will not necessarily reflect local circumstances.